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Guidelines for IsraelsInvestigation into Operation

Cast Lead27 December 2008 18 January 2009


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Guidelines for Israels

Investigation into Operation Cast Lead

27 December 2008 18 January 2009

February 2009

ISSN 1565-1746


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Guidelines for Israels

Investigation into Operation Cast Lead

27 December 2008 18 January 2009

On the morning of 27 December 2008, Israels air force bombed dozens of targets in

the Gaza Strip. Dozens of Palestinians were killed within the first five minutes, and

hundreds more wounded. In following days, the military continued the aerial bombing

and artillery shelling of buildings and sites. On 4 January 2009, ground forces entered

the Gaza Strip, taking control of parts of it. On 18 January, Israel declared a unilateral

cease-fire, and the next day, Hamas did the same.

The full magnitude of the injury to the civilian population and the scope of damage

caused during the course of the operation are only now coming to light, after the

military has left Gaza. In the three weeks of the operation, over 1,300 Palestinians

were killed and over 5,320 were wounded, 350 of them seriously. According to initial

estimates, based on satellite photographs, at least 1,200 buildings and over 80

hothouses were destroyed during the operation.1 Tens of thousands of persons were

left homeless.

During the operation, Palestinians fired rockets and mortar shells at Israel with the

declared intention of hitting civilians. These attacks killed three Israeli civilians and

one soldier and injured more than 84 people, four of them seriously. Nine soldiers

were killed in combat within the Gaza Strip (four by IDF fire) and 113 were wounded,

one critically and 20 moderately or seriously.

As an Israeli organization, BTselem focuses on the acts of Israel and its human rights

responsibilities; accordingly, this document does not address the conduct of the

Palestinian side in the fighting. However, BTselem states at the outset that Hamas

committed grave breaches of international humanitarian law. Directing rockets at a

civilian population, shooting at soldiers from inside civilian neighborhoods, while

endangering the lives of the residents, storing weapons in civilian structures, and

execution of Palestinians suspected of collaborating with Israel are all absolutely

forbidden. Israeli officials also contend that Hamas fighters forced civilians to serve as

1. According to data given to BTselem by the UN Institute for Training and Research on 4

February 2009.


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human shields, that they used ambulances to move from one hiding place to another,

and that they hid inside hospitals. These acts are also forbidden, and if they were

indeed committed, their perpetrators are responsible for grave breaches of

international humanitarian law.

International humanitarian law is not based on reciprocity, and obligation to comply

with it does not depend on the other sides compliance.2 Thus, the fact that Hamas

breached international humanitarian law does not grant Israel the right to breach it,

even if the violations by Hamas make compliance more difficult. Indeed, both during

and after the operation, Israeli officials military and other contended that all their

actions were carried out in accordance with international humanitarian law and were

approved by military legal advisors and by the Attorney General.

The objective of this document is to lay out the principal questions that arise regarding

the militarys conduct during Operation Cast Lead, and to outline the primary

directions that Israel must investigate regarding its conduct. BTselem continues to

research specific events that took place during the operation and will publish its

findings when this research is completed.

Firing at civilians

According to the Palestinian human rights organization al-Mezan, 1,342 Palestinians

were killed in the course of the operation in the Gaza Strip, some by aerial

bombardment, some by artillery shelling, some by tank fire, and some by soldiers

gunfire. Of this total, 907 (some two-thirds of the Palestinian fatalities) were killed

after ground forces entered the Gaza Strip, on 4 January. Thousands of people were

injured, 350 of them seriously.

The high number of casualties in such a short time and the circumstances of the

fighting in Gaza make it difficult to authoritatively determine how many of the

casualties were involved in the hostilities, and how many were not. However, 315 of

those killed were minors (under age 18), including 235 who were under age 16. One

2. Article 51(8) of the First Additional Protocol to the Geneva Conventions of 1949, 1977

(hereafter: the First Protocol).


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hundred and fifteen of those killed were women and at least 83 were men over age

50. These figures give a minimum indication of the scale of the civilian casualties. In

addition, BTselem has documented many individual incidents in which young men not

involved in the hostilities were killed.

International humanitarian law has established principles that are intended to protect

civilians and reduce, as much as possible, harm to them during hostilities. For

example, military forces are required to distinguish between combatants and civilians,

and attacks aimed at civilians are absolutely prohibited. It is permissible to direct

attacks only against persons directly taking part in the hostilities or at military objects,

which are limited to those objects which by their nature, location, purpose or use

make an effective contribution to military action, and whose total or partial

destruction, capture or neutralization, in the circumstances existing at the time, offers

a definite military advantage.3 Even when an attack is aimed at an object that meets

all these requirements, it is obligatory to take certain precautionary means to ensure

that the harm to civilians is as minimal as possible. Therefore, it is obligatory to

choose means of attack that will minimize injury to civilians and to avoid attacks that

may be expected to cause excessive damage to civilians in relation to the concrete and

direct military advantage anticipated.4

It is undisputed that application of these principles in the Gaza Strip is complex, given

that Gaza is one of the most densely populated areas on earth, and any error could be

fatal. In addition, it appears that Hamas members systematically breached these

principles. Indeed, it is not exact science and commanders in the field must make

rapid decisions while often lacking full knowledge of the facts. However, Israel is still

required to act according to the principles of international humanitarian law, and to

take into account the presence of civilians both near and within areas that the military

attacks.

Examination of the Israeli militarys conduct during the operation raises concerns as tothe extent to which Israel complied with its obligations under international

humanitarian law regarding distinction, proportionality, and direct fire at civilians.

3. Ibid., article 52(2).

4. Ibid., article 57.


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The principle of distinction

Most of the buildings Israel targeted in the Gaza Strip usually served civilian purposes,

such as offices, mosques, and private houses. In statements released during the

operation, the IDF Spokesperson claimed regarding most of these buildings that they

had been attacked because Hamas was using them to store weapons, manufacture

weapons, or plan attacks on Israeli soldiers or civilians. The military provided only

minimal evidence to support these claims, and BTselem is unable to examine their

accuracy. However, at least in one instance, BTselem found that such information was

erroneous. The IDF Spokespersons Office posted a video on its website which it

claimed showed Palestinians loading Grad missiles onto a truck. At the end of the

video, a missile is fired at the truck by a helicopter, killing eight Palestinians.

BTselems investigation revealed that the Palestinians seen in the video were loading

oxygen canisters and other equipment they had taken from a metal workshop that had

been bombed, their aim being to prevent the canisters and equipment from being

looted.5

When civilian objects are used for military purposes, they lose the protection afforded

them by law. However, the burden of proof falls on Israel to show that Hamas was

using a civilian object for military purposes. If any doubt remains as to the character

of an object, it must be presumed that the object is not a legitimate target and is

being used for civilian purposes alone.6 So long as there had been no independent

inquiry, only limited credence can be given to Israeli claims that Palestinians made

prohibited use of these objects turning them into legitimate targets.

During the operation, the military used imprecise weapons, whose range of error and

destructive capability were significant. For example, the military made extensive use

of artillery fire before ground forces entered the Gaza Strip, with soldiers firing

hundreds of shells over the course of a few hours. According to reports, this shelling

was aimed primarily at open areas that were thought to be used for launching missilesat Israel in Beit Hanun, Jabalya, and Khan Yunis.7 The military continued to use

5. See BTselems press release of 31 December 2008.

6. Article 52(3) of the First Protocol.

7. See Ron Ben-Yishai and Hanan Greenberg, Military Opens Artillery Fire: Hundreds of Shells

Fired,Ynet, 3 January 2009; Yoav Stern, Avi Issacharoff, Amos Harel, and Barak Ravid, 30

Soldiers Wounded, 2 Seriously; 30 Palestinians Killed,Haaretz, 4 January 2009.


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artillery fire also after soldiers had entered the Gaza Strip, before occupying new

territory.

The standard deviation of artillery fire is dozens of meters and the range at which

persons can be expected to be killed or wounded by it also reaches dozens of meters,

depending on field conditions. Taking this and the densely populated area into

account, use of artillery fire significantly increases the chance of civilian casualties.

Indeed, civilians in the Gaza Strip have been killed by artillery fire in the past, and in

November 2006, the military ceased using artillery fire, partly for this reason.8

The army also used mortar shells during the operation. Lt. Col. Shuki Ribek,

commander of Battalion 51, said, I dont recall when we ever fired mortar shells in

Gaza before.9 The reason is, primarily, that mortar fire is even less accurate than

artillery fire. On 6 January, the army fired a mortar shell in the Jabalya refugee camp,

near UNRWAs Fakhura school, which sheltered civilians who had fled from their homes

following the aerial bombing. Over 40 civilians were killed by these mortars, including

ten members of a single family who were in their yard. A few days afterwards,

Haaretzreported that, according to the militarys initial inquiry, soldiers had identified

rocket fire from a building next to the school. They fired mortar shells at the source of

the fire. The standard deviation of these shells is a few dozen meters, and in

retrospect, military officers admitted to the journalist that it was a wrong choice of

means of response and that the army should have used a precise weapon.10

BTselem cannot determine how many civilians were killed throughout the operation as

a result of artillery fire or mortar shells. However, since these weapons are imprecise,

they cannot be aimed exclusively at locations from which Palestinians were shooting.

Given the population density in Gaza, and the fact that Palestinian fighters were near

civilians, the risk of harm to civilians from these weapons was particularly high.

8. See HCJ 3261/06, Physicians for Human Rights et al. v. Minister of Defense et al.,

Supplemental Response on Behalf of Respondents, 2 July 2007. See, also, Amos Harel, Peretz

Determined: Artillery Fire into the Gaza Strip only with Approval of OC Southern Command and

his Superiors,Haaretz, 9 November 2006.

9. Amos Harel and Avi Issacharoff, We Came, We Bombed, We Deterred Now, Out,Haaretz,

15 January 2009.

10. Amos Harel, Admission in the IDF: We Erred in Choosing the Means of Response to the

Terrorist Gunfire,Haaretz, 11 January 2009.


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In addition, during the operation, the military used white phosphorus, which causes

severe burns and sets fires to buildings and fields. Officials did not explain why the

military had chosen to use this weapon, and at first, even denied that such shells had

been fired. Later, officials in the defense establishment admitted that this weapon had

been used during the operation, and announced that the military would make an

inquiry into the matter.11 International humanitarian law does not prohibit the use of

this weapon as such, but does restrict it to use against military objects, and even

then, not from the air. When the military target is located inside a residential area, use

of this weapon is absolutely prohibited.12

The principle of proportionality

During and after the operation, there were numerous reports in the media regarding

the massive force used by the military. For example, Alex Fishman wrote as follows inYediot Aharonot:

In the last operation, the intensity of the fire was unprecedented in IDF warfare

inside an urban area In Operation Cast Lead, not one house along the Philadelphi

Corridor was left intact. Division commanders were allowed to strike any house

suspected of being booby-trapped. When they stormed Beit Lahiya, every second

house, on average, was shelled Ashkenazi gave orders in advance to use extensive

fire: massive use of fire.

13

Massive use of force does not necessarily indicate breach of the principle of

proportionality, certainly when Hamas fighters are operating in a civilian area, booby-

trapping houses, and hiding weapons in houses of civilians. However, the high number

of people killed and injured during the operation, and particularly given that there

11. Amir Buhbut, Admission in the Defense Establishment: IDF Fired Phosphorous Shells in

Gaza,NRG, 19 January 2009; Amos Harel, IDF Investigates Why Reserve Force Fired 20

Phosphorous Shells at Residential Area in the Strip,Haaretz, 21 January 2009.

12. The Third Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain

Conventional Weapons which may be Deemed to be Excessively Injurious or to Have

Indiscriminate Effects, which relates to incendiary weapons. Israel has not signed the Protocol,

but the rule it states is based on two customary principles of international law, which are binding

on Israel: distinction and the prohibition on causing unnecessary suffering.

13. Alex Fishman, Winograd, Youre Released, Weekend Supplement, Yediot Aharonot, 23

January 2009.


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were cases in which many civilians were killed in a single attack, necessitates an

inquiry as to whether the military respected the principle of proportionality. For

example, on 1 January, the air force bombed the house of Nizar Rayyan, a senior

Hamas official, contending that the house served as a large munitions warehouse and

as a war room. Under the house was an escape tunnel for terrorist members of

Hamas military wing.14 The media reported claims that the family had been given

prior warning of the intention to bomb the house, but they had refused to leave or had

left the house and returned before the attack. The bombing killed Rayyan, his four

wives, and their eleven children, most of them ranging in age from one to twelve.

Similarly, on 6 January, the military bombed the home of the Daiyah family, in Gaza

City. The four-floor house had more than 30 people inside. Twenty-one persons were

killed in the bombing, 12 of them children under the age of 10.

BTselem is unable to examine whether Israel breached the principle of proportionality

in these cases, in that the determination depends on the information that the military

had at the time of the bombing, which has not been revealed. However, in these and

many other cases, civilian casualties were very high and appear at face value to be

excessive. Israel cannot make do with placing the responsibility with Hamas, but must

prove that the anticipated injury to civilians as a result of carrying out the attack at

that time was not excessive in relation to the military advantage anticipated from the

attack.

Direct fire at civilians

During the operation, BTselem received particularly grave reports of soldiers

intentionally aiming gunfire directly at civilians who were not involved in the hostilities

and who did not endanger the soldiers lives in any way. For example, BTselem was

told of persons who wanted to leave their houses to reach a safer location, but soldiers

fired at them. In some of the cases, they fired even though the civilians were waving

white cloth to make it clear that they were not armed and did not intend to endanger

the soldiers. BTselem also received testimonies regarding people shot by soldiers

while trying to evacuate people who had been wounded near their houses.

Reports of such severe incidents, which constitute especially grave criminal offenses,

must be thoroughly investigated. The inquiry must examine, among other things,

14. Announcement of the IDF Spokesperson, 1 January 2009.


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whether the soldiers were given orders that permitted them to shoot under such

circumstances, or whether they were breaching military orders.

Lack of protection of civilians

One distinctive characteristic of Operation Cast Lead was the fact that civilians had

nowhere to flee to escape the danger. Unlike other places in the world, in which long

lines of refugees are seen carrying their few remaining possessions, Gaza civilians

remained trapped within a small area, since Israel left the crossings out of the Gaza

Strip closed and Egypt refused to open the Rafah Crossing.

Israel was well aware of this situation and was obliged to take precautions to reduce

harm to civilians. The military claims that it fulfilled this obligation by dropping flyers

from the air or by placing phone calls to notify civilians in advance of the intention to

bomb the area where they were located.

International humanitarian law indeed requires that prior warning be given in order to

prevent, to the extent possible, harm to civilians.15 However, the warnings that the

military gave does not constitute fulfillment of Israels obligation, since their

effectiveness is unclear, given the fact that the crossings out of the Gaza Strip

remained closed and civilians did not always have a place to which they could flee.

Moreover, giving prior warning to civilians does not render an area sterile and a

legitimate military target that can be bombed without taking into account whether

civilians indeed heeded the warning and evacuated the area. In cases in which the

military knew, or should have known that civilians remained in a given area, it was

obliged to take this fact into account when carrying out any attack.

Despite the warnings, some residents chose to stay in their homes. As there are no

reinforced rooms or bomb shelters in the Gaza Strip, even when people did leave their

homes, they remained defenseless. In addition, the conditions in those places where

people sought shelter were poor. Towards the end of the operation, OCHA reported

that more than 50,000 people had fled to shelters established by UNRWA.16 As UNRWA

15. Article 57(2)(c) of the First Protocol.

16. United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Field up-date on

Gaza from the Humanitarian Coordinator, 17-18 January.


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was not equipped to deal with such a large number of refugees, the shelters severely

lacked basic goods and services including food, water, mattresses, and blankets.

In some cases, the military also struck places to which people had fled. According to

reports given to BTselem, on 4 January, the military fired at the Asmaa primary

school in the Shati refugee camp, in which some 450 persons had sought shelter.

Three persons were killed. On 15 January, the military struck UNRWA warehouses, in

which over 700 persons had found shelter, injuring three persons. Two days later, on

17 January, the military fired at another UNRWA facility, killing two children, aged five

and seven.

Not only is there concern that the military refrained from taking the necessary

precautions to protect the civilian population, but in certain cases, it seems that the

military itself endangered civilian lives. According to testimonies given to BTselem,

the military used Palestinians as human shields during the operation. People told

BTselem that soldiers ordered them to enter buildings to ensure that they were not

booby-trapped or to bring people outside, to remove suspicious objects from roads,

and to stand before soldiers in order to prevent Palestinians from shooting at them.

Use of civilians as human shields is absolutely prohibited both under international

humanitarian law and under Israeli military orders. Throughout the second intifada,

and particularly during Operation Defensive Shield in April 2002, the Israeli military

made extensive use of Palestinians in this way. In October 2005, following a petition

filed by seven Israeli human rights organizations, the Israeli Supreme Court ruled that

any form of use of civilians as human shields is absolutely forbidden.17 Accordingly,

military orders were changed and the use of human shields dropped significantly.

Targeting symbols of government

During the operation, the Israeli military bombed clearly civilian objects, among them

the Police building, the Legislative Council, and government ministries, including the

ministries of justice, finance, foreign affairs, labor, and construction and housing.

On the first day of the operation, 27 December 2008, the air force bombed the central

Police headquarters in the Gaza Strip, killing 42 cadets standing in their morning

17. HCJ 3799/02,Adalah et al. v. OC Central Command et al.


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formation. One of the cadet trainers told BTselem that during the course, cadets study

first-aid, crowd control methods, exercises in maintaining order, and the like. The

policemen are then assigned to various branches of the civilian police in the Gaza

Strip.

On 30 December 2008, following an attack on buildings in the Gaza city government

complex, the IDF Spokesperson stated that the air force had attacked three buildings

in the complex, in which the governments activity is concentrated, and which support

financing, planning, and carrying out terrorist acts. The announcement continued:

Attacking this strategic governmental objective was executed following the prolonged

firing of the Hamas terror organization at Israeli territory, and in the framework of IDF

activity to strike at the governmental infrastructure and the military wing. Two days

later, on 1 January, following the attack on the building of the Legislative Council and

the Ministry of Justice, the IDF Spokespersons Office issued a similar announcement:

Attacks on strategic governmental objectives, which are part of Hamas government

apparatus, is a direct response to the prolonged firing of the Hamas terror

organization at communities in southern Israel.

As opposed to other announcements made by the IDF Spokesperson regarding various

bombing and shelling throughout the operation, the above announcements did not

claim that the buildings served any military purposes, such as munitions storage or

cover for armed Palestinians. This disparity indicates that the reason for striking these

targets was not related to the purposes for which they were being used.

Statements by Israeli officials, according to which Israel deems everything connected

to Hamas a legitimate target, strengthen this conclusion. In an article published in the

Washington Post, Major Avital Leibovich, of the IDF Spokespersons Office, said that

the military had indeed expanded the list of its targets, in comparison with previous

operations, contending that Hamas uses civilian activity to cover up its military

actions. Consequently, she argued, everything related to Hamas is a legitimatetarget.

The deputy chief of staff, Maj. Gen. Dan Harel, at a meeting with heads of local

authorities in southern Israel said as follows:

We are striking not only terrorists and launchers, but the entire Hamas

administration, and all its arms We are striking government buildings,

manufacturing plants, security branches, and so forth. We demand governmental


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responsibility from Hamas and we do not distinguish between the various branches.

Following the operation, no Hamas building will be left standing.18

It is clear that Hamas is responsible for the firing of rockets at Israelis. However, as

the governing authority in the Gaza Strip, it is also responsible for the functioning of

daily life. As such, it must supervise the activity of all civil systems in Gaza welfare,

health, housing, law, among others and ensure public order also by means of the

police. Therefore, even if Hamas is a hostile entity whose principal objective is to

oppose the existence of the State of Israel, this does not mean that every action it

takes is intended to harm Israel, or that every government ministry is a legitimate

object of attack.

Indeed, media interviews of representatives of the IDFs international law department,

whose names were not made public, indicate there was a serious difference of opinion

on the legality of striking these targets. Haaretzreported that only following pressure

by the operational level was a legal interpretation found that would enable attacking

police officers and other Hamas government targets. According to this interpretation, a

senior officer in the international law department explains:

The manner in which Hamas operates as we understand it, the whole governmental

infrastructure is used for the organizations terrorist needs, so that the distinctions

are slightly different. We are adapting the targets to the case of a terrorist

government.19

In another interview, given to Yediot Aharonot, the reporter pointed out that when

representatives of the military Judge Advocate Generals Office were asked about the

attack on the government buildings and on police officers, they shifted uncomfortably

in their seats, and for a few seconds there was silence in the room. Ultimately, they

gave the following explanation:

When a terrorist organization controls the government, all government ministries are

used to fulfill the objectives of the terrorist organization. Why do you assume that the

Palestinian transportation ministry serves only to set bus routes? Maybe it serves

18. Tova Dadon, The Deputy Chief of Staff in Kiryat Gat: The Worst is Yet to Come,Ynet, 29

February 2008.

19. Yotam Feldman and Uri Blau, Not Stopping at Grey,Weekend Supplement, Haaretz, 23

January 2009.


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other purposes? ... Hamas does not make the separation that is customary in an

orderly-run country. The apparatuses and positions are completely intermixed there.

There are commanders who command an official force and also a secret combat

force. Commanders of official forces have declared that they are part of the

resistance. This connection between forces has created a situation in which

separation is non-existent. Also, there was information that cannot be revealed.20

This explanation cannot justify attacks on all government ministries or justify treating

them as legitimate military objects. It is clear from the above comments that the

decision to attack patently civilian objects of the Hamas government was not based on

precise information relating to the military activity taking place in these institutions,

but on estimations regarding the way Hamas works. Such a definition of military

object contradicts international humanitarian law, according to which military objects

are only objects that make an effective contribution to military actions against Israel

and it is clear that attacking them will provide Israel with a definite military

advantage.

In addition, the comments quoted above clearly indicate that there was, at the very

least, doubt as to the legality of attacking these objects under international

humanitarian law. When a doubt exists whether civilian buildings including

residential dwellings, houses of worship, or schools are also used for military

purposes, they must continue to be treated as civilian objects.21

BTselem wrote to Israels Attorney General, Menachem Mazuz, demanding

clarifications on the attacks on civilian objects. The response, provided by the

militarys Judge Advocate General, completely ignored the questions raised in the

letter. BTselem responded and continues to wait for a substantive reply.

Evacuation of wounded and attacks on medical teams

During the operation, BTselem and other organizations received reports that Israel

was preventing ambulances from reaching wounded persons, and that soldiers were

preventing wounded persons from getting to hospitals. Some of the reports related to

20. Moshe Ronen, War has Rules, 24 Hours Supplement, Yediot Aharonot, 19 January 2009.

21. Article 52(3) of the First Protocol.


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wounded persons who remained in enclaves created when the military advanced into

the Gaza Strip, isolating residents behind the advancing forces. In other cases,

wounded persons were afraid to leave their houses while the military was still in the

area. In some cases, civilians tried to evacuate persons who had been wounded and

remained in the street, but soldiers fired at them and they retreated. As a result, there

were cases in which wounded people literally bled to death. Difficulties in evacuating

the wounded increased after Israeli ground forces entered the Gaza Strip and

subdivided it. Movement of medical teams became almost impossible, as was access

to hospitals in the central section of the Gaza Strip.

Attempts made by Israeli organizations, the Palestinian Red Crescent and the

International Committee of the Red Cross to coordinate access for medical teams

trying to reach wounded persons and evacuate them failed in many cases. In some

cases, even where coordination was arranged, soldiers reportedly fired at ambulances.

According to data supplied by the Palestinian Health Ministry, at least 16 medical-team

personnel were killed during the operation.

The International Committee of the Red Cross deviated from its normal mode of

operation and issued several public announcements warning of harm to wounded

persons and medical teams. In an announcement on 7 January, which was issued after

the military finally permitted evacuation of wounded from the Zeitun neighborhood in

Gaza City, the Red Cross stated that Israel breached, in this case, international

humanitarian law provisions requiring treatment and evacuation of wounded persons,

and that the delay in evacuation of the wounded was unacceptable.

On 6 January, eight human rights organizations petitioned the Supreme Court of

Justice demanding that the military permit medical teams and ambulances to move

about in the Gaza Strip and enable evacuation of wounded to hospitals. In response to

the petition, the state contended that soldiers had been given unequivocal instructions

to refrain from attacking medical teams and ambulances, and to enable residents whohad been wounded to receive medical treatment and be evacuated to hospitals.22

However, Israel immediately qualified this statement:

19. Reports of soldiers in the field, visual testimonies from observation posts, and

intelligence information accumulated by the respondents indicate clearly and

22. HCJ 201/09, Physicians for Human Rights et al. v. the Prime Minister et al., Response on

Behalf of the Respondent, 8 January 2009, sections 4 and 24.


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unequivocally that the terror activists sometimes use ambulances to carry out

terrorist acts, and also sometimes disguise themselves as medical-team personnel.

This is a mode of operation, rather than isolated and exceptional incidents. For

example, according to classified information in the hands of the security forces,

Hamas activists use ambulances to transport rockets and ammunition from place to

place, and also to transport terror activists inside the Gaza Strip. Also, there is

intelligence information that terror activists disguise themselves as medical teams to

prevent their being hit by IDF gunfire which is careful not to shoot at medical

teams

20. The respondents also will argue that the petitioners claims should be directed

primarily at the Palestinian side, which flagrantly breached and breaches international

law, severely prejudices the trust that IDF forces are supposed to give to medical

teams, ambulances, and hospitals, and thus often causes,purely as a side-effect,

delay in treatment and evacuation of wounded and the ill, among other things, and

also occasionally, unfortunately, harm of these teams.

21. The respondent will argue that, despite the fact that Hamas flagrantly breached

and breaches the laws of war, the IDF operates in accord with the rules of

international law applying to the matters raised in the petition. The state will argue

that, to the extent that delay in evacuation and treatment of wounded occurs

occasionally, and to the extent that medical teams are indeed struck, this is not done

intentionally, but as an unintentional result of combat actions nearby. International

law recognizes that such unintentional harm is not unlawful.23

These statements, which the state has made in the past, are aimed at justifying the

harm caused to medical teams and the delay in treating and evacuating wounded

during the hostilities. These claims are made without the events having been

investigated and without examining whether the soldiers in fact acted properly.

The protection granted medical teams and wounded in international humanitarian law

is broad and comprehensive. Civilian hospitals may in no circumstances be the object

of attack, but shall at all times be respected and protected by the Parties to the

23. Ibid., sections 19-21. Identical comments were made in sections 23-25 of the updated

response filed on behalf of the state on 13 January 2009.


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conflict.24 This protection applies also to persons regularly and solely engaged in the

operation and administration of civilian hospitals, including the personnel engaged in

the search for wounded and sick civilians.25 Also, each Party to the conflict shall

facilitate the steps taken to search for the killed and wounded.26

Indeed, as the states response argues, international humanitarian law recognizes that

there will be circumstances in which these protections cannot be provided. The first

exception states that the protection of hospitals and medical teams shall not cease

unless they are used to commit, outside their humanitarian duties, acts harmful to

the enemy.27 The second exception states that in especially extreme cases, when the

hostilities and military considerations make it impossible to enable medical teams to

enter the area and evacuate the wounded, it is permissible to delay evacuation, but

even in such instances, the law calls for the least possible delay.28

The state chooses to adopt these narrow exceptions and turn them into the main

principle in an attempt to justify the militarys conduct during the operation. However,

these exceptions are intended to provide a response for extremely unusual situations

and unexpected incidents, and not as a basis for setting policy during hostilities.

The argument that Palestinians abused ambulances has been raised numerous times

by Israeli officials, primarily since the second intifada began, although Israel has

almost never presented evidence to prove it. Such misuse of ambulances is absolutely

prohibited and breaches international humanitarian law. However, even if it does

occur, it does not justify prohibiting the movement of ambulances or shooting at

ambulances and medical teams when they are being used and are acting lawfully.

Regarding evacuation of wounded persons as well, the state defends its actions on the

grounds that fighting is taking place in the area and brandishes the statement that the

delay is not intentional. However, preventing evacuation of wounded persons for a few

days cannot be reconciled with the requirements of international humanitarian law,

24. Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of

1949, article 18.




28. Ibid., sections 16 and 17. See, also, the First Protocol, article 10.


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certainly with respect to areas in which the fighting had already ended and when the

soldiers themselves were close at hand and could have provided aid.

Israel also argued before its Supreme Court that the military had prepared in advance

to handle the wounded, and that it had established a humanitarian situation room.

In its response to the court, the state listed the situation rooms telephone number

and invited all the organizations to contact it to coordinate evacuation of wounded

persons. However, when BTselem and other organizations contacted this number,

they received the reply that requests are only accepted via the ICRC and a refusal to

handle the cases.

Especially grave is Israels shirking of its responsibility regarding the delay in

treatment of the wounded and the harm to the medical teams, and the attempt to

place responsibility solely on Hamas. Israel is the one who prohibited ambulances from

moving throughout the Gaza Strip, even in areas in which the fighting had ended, and

it is Israel that refused to set up an effective mechanism for coordinating evacuation

of the wounded. As a result, some people bled to death. Human rights organizations,

journalists, and international bodies reported on this situation during the course of the

operation, and Israeli decision-makers were well aware of it, yet did not change it.

Accordingly, insisting that such harm is purely a side effect is feigned innocence and

nothing more.

Collapse of civilian infrastructure and public services

During Operation Cast Lead, civilian infrastructure and public services in the Gaza

Strip collapsed almost completely. The brief daily cease-fires Israel instituted after the

first few days of fighting were insufficient to meet the populations needs.

At the beginning of the operation, Gazas power station, which provides one-third of

electricity in the Gaza Strip, was closed after the fuel to operate it ran out. The

military also struck several power lines running to Gaza from Israel and Egypt. As a

result, residents received only 25 percent of the electricity they needed. The harm to

the electric supply impaired water and sewage systems. At the peak of the hostilities,

more than 800,000 people were without running water. Sewage from Gaza City flowed

onto farmland; in Beit Hanun, sewage flooded the streets. The hospitals, which

strained under the extreme case load, were forced to rely on generators. They also


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electrical, water, and sewage system was poor, but could not be repaired due to the

prohibition Israel placed on the entry of construction materials and replacement parts

into Gaza.

The economic situation of the residents deteriorated. According to statistics in OCHAs

report, in the second quarter of 2008, unemployment reached 50 percent. In 2007, 79

percent of Gazan households lived under the poverty line and 70 percent lived in deep

poverty. Figures of the Palestinian Industrialists Association indicate that, of the 3,900

factories that were operating in Gaza prior to the blockade, only 23 were still

operational in the period preceding Operation Cast Lead, and 34,000 factory workers

had been dismissed. Forty thousand other workers permanent and temporary lost

their jobs in the fishing and agricultural sectors, in part because of the prohibition on

exports and the shortage of raw materials.

Hospitals and medical clinics continued to operate, but the level of their services was

severely impaired. Most had to rely on generators because of the power cuts. The

shortage of replacement parts and raw materials resulted in poor maintenance of

medical equipment, and physical infrastructure could not be repaired. The blockade

also created a shortage in personnel and medical specialists, inasmuch as Israel

prevented medical staff to go abroad for in-service training and to improve their

expertise.

This was the situation in the Gaza Strip on the eve of the operation. As a result, the

population suffered immediate and serious harm, in that residents and the public

services had already used up the emergency reserves that were available to them, and

nothing was left for a time of crisis. Israel was well aware of the grave situation of the

civilian population. Therefore, it should have prepared accordingly, before commencing

the operation, and should have enabled the entry and stockpiling of goods, food and

fuel so as to prevent such a rapid collapse.

Conclusion

The extent of the harm to the civilian population in the Gaza Strip during Operation

Cast lead is unprecedented. Only now is the full magnitude of the destruction coming

to light and additional testimonies about what happened continue to surface. Whole

families have been wiped out. Children were killed before their parents eyes. Some

people watched as their loved ones bled to death. Clearly, even after the dead are


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buried and the rubble has been cleared away, the residents of the Gaza Strip will carry

scars from this operation for a long time to come.

Images of the destruction in the Gaza Strip received prominent coverage around the

world and various bodies called for the establishment of investigative committees of

one kind or another, including demands to prosecute Israeli soldiers for the gravest of

crimes. In Israel, however, official authorities prefer to hide behind sweeping

declarations that the military acted properly during the operation.

Defense Minister Ehud Barak declared that the IDF is one of the most moral armies in

the world, if not the most moral of all, and employed every possible means to avoid

injuring civilians.31 Prime Minister Ehud Olmert declared:

During the operation, the State of Israel used its force with great sensitivity, in order

to avoid, as much as possible, injuring civilians who are not involved in terror. In

cases in which there was room for doubt whether attacking terrorists would harm

innocent civilians we avoided acting. There are not many countries that would act

as we did.32

In response to BTselems letter regarding intentional targeting of Palestinian

government buildings, the Judge Advocate General, Brig. Gen. Avichai Mandelblit,

wrote that:

The attacks that the IDF is carrying out in the Gaza Strip by air, ground, and sea

are being conducted in compliance with the laws of war. The IDF is operating

accompanied by legal advice that is intended to bring before decision makers in the

IDF the legal aspects that apply to their conduct, and to provide them with the legal

tools necessary to achieve the operational goals with which they are faced.

The JAG added that while we regret, of course, any harm to civilians, we

emphasize again that the responsibility for that lies solely at the doorstep of the

31. Ahiya Rabad, Barak: The Operation Fundamentally Changed Reality,Ynet, 21 January

2009.

32. The Full Speech: Prime Minister Declares Ceasefire in Gaza,Ynet, 18 January 2009,

www.ynet.co.il/articles/0,7340,L-3657794,00.html.


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Hamas organization, following its use of the civilian population for its despicable

purposes.33

As with every body of law, international humanitarian law can be interpreted in

different ways. However, it is clear that not every interpretation is acceptable and

reasonable. The interpretation given by Israeli military legal advisers during Operation

Cast Lead, which enabled, among other things, attacks on civilian objects, use of

prohibited weapons, and prolonged delay of evacuation of wounded is unacceptable.

The primary objective of international humanitarian law is to protect the civilian

population from the horrendous effects of war. The understanding that harm to

civilians is inevitable is built into its provisions, and the requisite balancing between

military needs of the adversary sides and civilian harm has already been made. Using

ambiguous terminology and narrow exceptions to justify such grave harm to civilians,

in an attempt to create a semblance of compliance with the law, constitutes cynical

use of a law that is primarily intended to distance civilians from the hostilities and

minimize all harm to them.

It is possible that in at least some of these cases, the use Hamas made of the civilian

population has implications for the legality of Israeli attacks that harmed civilians.

However, the conduct of Hamas members cannot provide a sweeping justification for

all Israeli actions during the operation and does not prove that every injury to civilians

by the Israeli military resulted from prohibited Hamas conduct. As this document

shows, in several instances there is grave suspicion that the injury to civilians resulted

precisely from Israels use of means and methods of warfare that do not distinguish

between military and civilian objectives. In other cases, it appears that the anticipated

harm to civilians was excessive in relation to the concrete and direct military

advantage anticipated from the attack. In these cases at least, the military

commanders cannot be exempted from responsibility for harm to civilians, regardless

of Hamas behavior.

An initial overview of Israels conduct during Operation Cast Lead raises grave

suspicion that soldiers and commanders breached international humanitarian law

during the hostilities. This suspicion relates not only to the conduct of individual

soldiers, but primarily to policy decisions. In light of this, a public reckoning of Israeli

actions is crucial; the Israeli public has the right to know what was done in its name in

33. Freely translated from the JAGs letter of 19 January 2009.


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the Gaza Strip. After concrete facts are provided, it will be possible to formulate an

informed position on the severe harm caused to civilians during the operation.

Regarding this point, Yediot Aharonots military correspondent, Ron Ben-Yishai, noted:

Among many sectors of Israeli society too, a fervent argument is developing on the

question whether the killing and destruction in the Gaza Strip were proportionate and

necessary. This will compel the government and the IDF to prove, with facts and

figures, before the nations of the world, that the use of force was proportionate to

the threat and to methods of warfare of Hamas, and was used, having no other

option, after all other means had been exhausted to safeguard the civilians.34

The scope and severity of the violations can be determined only in the framework of a

comprehensive investigation that examines the information that was available to the

military and its modes of operation. This investigation must be independent and

effective, open to public review, and conducted within a reasonable time. Israel must

initiate such an investigation, which examines, among others, the following questions:

Were civilian objects the target of attacks, even if prohibited use was notmade of them?

Did the military respect the principle of proportionality, according to which, inevery attack, the anticipated harm to civilians must not be excessive in

relation to the direct anticipated military advantage?

During the operation, did the military use weapons whose use is prohibited inthe circumstances prevailing in the Gaza Strip including white-phosphorous

shells and indiscriminate weapons?

Did soldiers shoot civilians who were not endangering their lives? Did Israeli soldiers force civilians to perform dangerous assignments and

otherwise use civilians as human shields?

Were ambulances and medical teams attacked while performing their duties? Was there an unjustified delay in the evacuation and treatment of wounded

persons, including in areas in which fighting was not taking place?

34. Ron Ben-Yishai, Who Really Destroyed Gaza?, Ynet, 20 January 2009.


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